United States Office of August 14, 1991
Environmental Protection Wetlands, Oceans,
Agency and Watersheds
vvEPA Questions And
Answers On The
Proposed Revised
Federal Manual For
Wetlands Delineation
Printed On Recycled Paper
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PROPOSED REVISED FEDERAL WETLANDS DELINEATION MANUAL
QUESTIONS AND ANSWERS
BACKGROUND
What is the Section 404 program?
The Section 404 permit program regulates the discharge of dredged or fill material into
waters of the United States, a term which includes most of the Nation's wetlands. This
program is jointly implemented by the Environment Protection Agency (EPA) and the
Army Corps of Engineers (Corps), with advice from the Fish and Wildlife Service
(FWS) and the National Marine Fisheries Service (NMFS). The Corps of Engineers
handles the day-to-day administration of the program, including jurisdictional
determinations, evaluating permit applications and deciding whether to issue or deny
the permit, and enforcement. EPA has also several significant statutory responsibilities
in the program including development, with the Corps, of the program's environmental
standards (the Section 404(b)(l) Guidelines); restricting or prohibiting discharges that
have unacceptable adverse effects (Section 404(c)); determining the scope of geographic
jurisdiction; enforcement (EPA and the Corps both have enforcement authority);
approval and oversight of State program assumption; and determining the applicability
of permit exemptions for many agricultural and silvicultural activities under Section
404(f).
Statistics on Section 404 permit reviews and activities
Permit Activities - The Clean Water Act Section 404 program regulates the discharge
of dredged or fill material into waters of the United States. In general, the Corps
receives approximately 15,000 individual permit applications annually (this number
includes both Section 404 and Section 10 applications). Of these 15,000 permit
applications:
- approximately 10,000 permits (67%) are issued;
- approximately 500 permit.applications (3%) are denied;
- approximately 4,500 permit applications (30%) are withdrawn by the applicant
or qualify for a general permit.
In addition, approximately 75,000 minor activities are authorized each year through
regional and nationwide general permits. General permits authorize activities in
wetlands and other waters without the need for an individual permit review as long as
these activities cause only minimal adverse environmental effects. Nationwide permit
#26, in particular, authorizes activities involving discharges of dredged or fill material
into 10 acres or less of isolated waters or headwaters streams (non-tidal streams where
the average annual flow is 5 cubic feet per second or less). For activities that affect
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between 1 and 10 acres of such waters, the applicant is required to notify the Corps of
Engineers prior to proceeding with any discharge. In some States, general permits
authorize activities covered by a State, wetlands regulatory program.
Permit Review Period - Approximately 92% of all permit evaluations (that is, both
individual and general permits) are completed in less than 60 days after a completed
permit application has been received by the Corps.
Individual permit applications that involve complex projects or sensitive environmental
issues usually require more than 60 days to reach a decision. After a completed
individual permit application has been received by the Corps:
- over 50% are processed in less than 60 days;
- approximately 25% percent are processed in 61 to 120 days;
- approximately 20% require 121 days to a year to process; and
- less than 5% require more than one year to process.
In addition, the Administration announced on August 9, 1991, a comprehensive plan for
improving the protection of the Nation's wetlands, including a provision that permits
will be deemed approved within six months unless the deadline is extended for good
cause (see attached Fact Sheet on "Protecting America's Wetlands"). EPA and the
Corps will provide further guidance as we move in this direction.
Statistics on Section 404(q) and Section 404(c) actions
Section 404fcl Actions - Section 404(c) of the Clean Water Act authorizes the
Administrator of EPA to prohibit or restrict discharges of dredged or fill material into
waters of the United States when such discharges would have unacceptable adverse
effects on municipal water supplies, shellfish beds and fishery areas, wildlife or
recreational areas. To date, EPA has completed only eleven Section 4Q4(c) actions, out
of an estimated 150,000 permit applications received since the Section 404(c)
regulations went into effect in late 1979.
Section 404fq1 Actions - Pursuant to Section 404(q), the Corps and EPA have
developed a process through a Memorandum of Agreement (MOA) to resolve any
differences over permit decisions within a clear timeframe to minimize delays in the
permit process. Since 1980 when the Section 404(q) MOA was first agreed to, EPA
has requested Headquarters level review of a permit decision only 28 times out of an
estimated 150,000 permit applications received throughout this period.
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Further clarifying the section 404 program: Are all uses of a wetland either regulated
or prohibited?
Much of the public is laboring under the misunderstanding that if an area is identified
as a wetland, any activity that takes place in the wetland is either regulated or
prohibited. This is not true.
First, not all activities in wetlands require a Section 404 permit. Section 404 only
regulates the discharge of dredged or fill material into waters of the U.S., a term which
includes most of the Nation's wetlands. Not all activities in wetlands involve a
discharge of dredged or fill material, and therefore do not require a Section 404 permit.
There are several development activities that cause wetland conversion or damage, but
do not involve discharge of dredged or fill material. Under certain circumstances, these
may include: lowering of groundwater levels, flooding of wetlands, drainage of wetlands,
and excavation of wetlands where the dredged material is disposed of on an upland site.
Activities which are under the scope of the Section 404 program are not necessarily
prohibited. Most of the activities subject to Section 404 requirements are either exempt
from the program (such as ongoing farming and silviculture activities) or are authorized
by one of the Corps' general permits.
Activities which are subject to Section 404 are authorized either through a general or
individual permit. Activities in wetlands that cause only minimal adverse environmental
effects are authorized under general permits. General permits do not require case-
specific permit review and are designed to expedite permitting process. Approximately
75.000 activities, out of over 85,000 authorized activities every year, are authorized
through general permits which are issued on a State, regional and nationwide basis.
There are currently 26 nationwide general permits, and numerous state and regional
general permits.
In addition, the Clean Water Act, under Section 404(£), generally exempts discharges
associated with normal farming, ranching and forestry activities such as plowing,
cultivating, minor drainage, and harvesting for the production of food, fiber and forest
products or upland soil and water conservation practices. This exemption pertains to
normal fanning and harvesting activities that are part of an established, ongoing farming
or forestry operation.
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THE FEDHRAT. MANUAL
What is the 1989 Federal Manual?
In January 1989, EPA, the Corps, FWS and Department of Agriculture Soil
Conservation Service (SCS) agreed to use one approach for delineating areas under the
jurisdiction of Section 404 and Swampbuster. The four agencies adopted a single
manual, referred to as the "Federal Manual for Identifying and Delineating
Jurisdictional Wetlands" (the 1989 Federal Manual), which established a national
standard for identifying and delineating vegetated wetlands. The purpose of the 1989
Federal Manual is to establish standard Federal technical criteria for identifying and
delineating vegetated wetlands under Section 404 of the Clean Water Act and the
"Swampbuster11 provisions of the Food Security Act of 1985, as amended. The 1989
Federal Manual uses three categories of evidence (three parameters) to determine
whether or not the technical criteria are met. These are: wetland hydrology, hydric soil
characteristics, and hydrophytic vegetation.
The 1989 Federal Manual provides guidance on how to collect and use field indicators
(such as free water, silt marks, wetland dependent plant species and organic soils) of
these parameters to accurately identify and delineate wetlands.
Should the Federal Manual be solely relied on to identify and delineate Jurisdictional
wetlands?
No. The Federal Manual provides mandatory technical ci iteria for the identification
and delineation of wetlands, and will be used to identify wetlands that are potentially
subject to the jurisdiction of Section 404 of the Clean Water Act or the "Swampbuster"
provisions of the Food Security Act of 1985, as amended. However, wetland
Jurisdictional determinations for regulatory purposes are based on other legal and policy
criteria in addition to the Federal Manual's technical criteria (e.g., regulatory guidance
on normal circumstances as it pertains to prior converted croplands). Therefore, the
appropriate agency policy should be consulted in conjunction with the Federal Manual
when identifying and delineating Jurisdictional wetlands.
THE 1989 FEDERAL MANUAL REVISION PROCESS
Why is the 1989 Federal Manual being revised? What was the goal of the Federal
Manual revision process?
The goal of revising the 1989 Federal Manual is to improve the Federal Manual's
ability to properly identify wetlands and to minimize the potential for erroneous
wetlands determinations. When the 1989 Federal Manual was adopted, it was
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anticipated by EPA, the Corps, FWS and SCS that some additional guidance or
clarification may be needed. After about a year of implementation of the Federal
Manual, the four agencies agreed that specific technical changes would be appropriate
to make the Federal Manual more effective and understandable.
The proposed revisions tighten the evidence requirements for the three parameters -
hydrology, hydric soils, and hydrophytic vegetation - in the definition of wetlands. This
approach to wetland delineation will make it easier for Federal or State agency staff to
explain to landowners how wetlands are being delineated. The proposed revisions are
intended to reduce the potential for erroneous wetland determinations - that is,
identifying an upland as a wetland or conversely, identifying a wetland as upland. The
proposed revisions are intended to be consistent with the definition of wetlands used by
EPA and the Corps in implementing the Section 404 program or by SCS in
implementing the Swampbuster program.
The proposed revisions incorporate technical knowledge derived from its use in the past
two years and from improvements in the state of science. The revisions address many
of the issues raised during the public meetings and public comment period (the summer
of 1990).
What was the revision process of the 1989 Federal Manual? What was the role of the
public in the revision process?
After over a year of implementation of the 1989 Federal Manual, the four agencies
agreed that the Federal Manual needed additional clarification and changes. Because
of the strong public interest in the Federal Manual, the four agencies provided the
public several opportunities to provide technical comments as part of the revision
process. Four public hearings were held in spring and summer 1990 in Baton Rouge,
LA; Sacramento, CA; St. Paul, MN; and, Baltimore, MD. In addition, written
comments on the 1989 Federal Manual were also accepted subsequent to the meetings.
More than 500 letters were received and reviewed. We believe that this process has
provided substantial and meaningful information. Results of formal field testing
conducted by EPA to evaluate the sampling protocols of the 1989 Federal Manual and
reviews by field staff of the four signatory agencies using the Federal Manual were also
reviewed and considered in developing recommended revisions.
What was the rote of the technical committee?
The Federal Interagency Committee for Wetland Delineation is a technical committee
composed of technical staff from the four agencies that developed the 1989 Federal
Manual: Environmental Protection Agency, Corps of Engineers, Soil Conservation
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Service, and Fish and Wildlife Service. The role of the technical committee in the
revision process was to recommend technical revisions to the 1989 Federal Manual
based on field experience and technical comments from the public during the public
meetings and public comment period scheduled in 1990. The technical committee
completed their revisions in the spring of 1991.
Have the four agencies agreed to the proposed revised Federal Manual?
The four agencies, the Environmental Protection Agency, Department of Defense,
Department of Agriculture, and Department of Interior have agreed to the Federal
Register Notice of the proposed revised Federal Manual and agreed that the Federal
Manual is ready for public comment
To what extent does policy affect the proposed revisions to the Federal Manual?
The purpose of the Federal Manual is to establish standard Federal technical criteria
for identifying and delineating vegetated wetlands. Therefore, the Federal Manual
primarily deals with the technical criteria consistent with the regulatory definitions of
wetlands. However, the Federal Manual is not solely a technical document. There are
policy issues addressed in the proposed revised Federal Manual. A key policy
consideration is, for example, the determination of "normal circumstances" under the
regulatory definition of wetlands. Another is the extent of evidence necessary for each
of the three criteria in order to make a positive wetland determination.
Do the agencies plan to field test the revised Federal Manual before it is finalized and
implemented ?
Yes. The four agencies are planning to fully field test the revised Federal Manual
before finalizing it. The intent of the field testing, which we expect to occur while the
Federal Manual is under public review, is to verify its technical validity in delineating
wetlands, assure its ease of implementation and reveal any unanticipated effects. We
are also interested in evaluating the applicability of the Federal Manual to all regions of
the country. The Corps will coordinate field testing among the four agencies at the
field level.
An independent expert panel will also field test the revised Federal Manual. Upon
completion of field,testing, the expert panel as well as the regions and district offices of
the four agencies will provide recommendations to the agencies to assist in developing
necessary final revisions to the Federal Manual. We also encourage other interested
parties to conduct field tests of the proposed revised Federal Manual and provide
recommendations during the public comment period.
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PUBLIC INPUT IN THE REVISION PROCESS
Wfll the public have an opportunity to comment on the proposed revised Federal
Manual?
Yes. The proposed revised Federal Manual was published on August 14, 1991, in the
Federal Register for public comment. The public is invited to review and provide
technical comments on the proposed revisions. Written comments must be submitted
on or before October 15, 1991. Copies of the proposed revised Federal Manual are
also available through the Wetlands Hotline at (800) 832-7828.
The revisions will be implemented only after the public comments have been reviewed
and considered, and a final Federal Manual has been issued. We encourage interested
parties to conduct field tests of the proposed revised Federal Manual and provide
recommendations during the public comment period. In addition, an independent panel
of experts will field test the proposed revised Federal Manual. The expert panel will
provide recommendations to the agencies to assist in developing necessary revisions to
the Federal Manual.
Wfll there be public hearings held on the proposed revised Federal Manual?
There are no public hearings scheduled. Specific detailed questions about the proposed
revised Federal Manual can be referred to individuals identified in the Preamble of the
Federal Register notice.
Wfll the proposed revised Federal Manual undergo public comment in accordance with
the Administrative Procedure Act (APA)?
The position that this Federal Manual is a technical guidance document which is not
required by law to go through Administrative Procedure Act (APA) legislative
rulemaking procedures has been upheld in court with respect to the 1989 wetlands
delineation Manual. However, the Federal Manual was published on August 14, 1991,
in the Federal Register, with a 60-day period for public review and comment.
Wfll the Federal Manual be issued as a regulation?
The agencies believe that it would be appropriate and in the public interest to include
parts of the final Federal Manual in the Code of Federal Regulations. When the
agencies determine what portions of the Federal Manual should be issued as a
regulation, they will provide notice of specific proposed regulatory language in the
Federal Register at least 30 days prior to the end of the public comment period. The
regulatory language will be subject to the Administrative Procedure Act rulemaking
process.
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KEY CHANGES TO THE FEDERAL MANUAL
What are the major revisions to the 1989 Federal Manual?
The major revisions and other major issues identified in the Preamble to the Manual
include the following:
1) The Three Criteria:
Clarify that, except in limited specified circumstances,
demonstration of all three parameters (wetland hydrology,
hydrophytic vegetation and hydric soils) is required for delineating
vegetated wetlands.
2) Limited Specified Exceptions to the Three Criteria:
Clarify that independent indicators of all three parameters are
required UNLESS the area is a disturbed wetland or the area is
specifically listed in the proposed Federal Manual as an exception.
Specifically identify exceptions (i.e, playa lake, prairie pothole,
vernal pool, pocosin, and other special wetlands that fail the
hydrophytic vegetation criterion such as Tamarack Bogs, White
Pine Bogs and Hemlock Swamps). Exceptions are widely
recognized valuable wetland types that may fail to meet one or
more of the 3 criteria during all or some part of the year.
Request public comment on the listed exceptions as well as
potential additions to the list, and on recommendations for
identifying appropriate indicators for each wetland type listed as an
exception.
3) Wetland Hydrology Criterion:
Require inundation for 15 or more consecutive days, or saturation
to the surface for 21 or more consecutive days during the growing
season.
Require saturation at the soil surface.
Narrow the wetland hydrology indicators to exclude Hydric Soils
and Wetland Vegetation as hydrology indicators.
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Separate the list of wetland hydrology indicators into primary and
secondary indicators. Primary indicators are more reliable and can
be used alone to meet hydrology criterion. Secondary indicators
are weaker and can only be used with corroborative information.
Remove water stained leaves, trunks, and stems as wetland
hydrology indicators; public comments are requested in the
Preamble regarding their reliability as indicators of hydrology
during the growing season and whether they should be primary or
secondary indicators.
Incorporate localized differences in the growing season; the
Preamble solicits comments on the definition of the growing season.
Request public comments on three alternatives to identifying and
delineating seasonally harder to identify wetland types that are
NOT exceptions to the criteria, but may not demonstrate indicators
of one or more of the 3 criteria during certain (e.g., dry) times of
the year.
4) Hydric Soils Criterion:
Specifically state that hydric soils must be field-verified; hydric soils
maps alone are not sufficient evidence of hydric soils.
Clarify that the three wetland criteria are mandatory except in
specified circumstances, and therefore the presence of mapped
hydric soils alone cannot be used to delineate an area as a wetland.
Incorporate localized differences for certain hydric soil phases.
5) Wetland Vegetation Criterion:
Propose the prevalence index approach that is, an area meets
this criterion if , under normal circumstances, a frequency analysis
of all species within the community yields a prevalence index value
of less than 3.0 (where OBL = 1.0, FACW = 2.0, FAC = 3.0,
FACU = 4.0, and UPL = 5.0).
Request public comments on including the Facultative Neutral test
as part of the hydrophytic vegetation criterion in addition to the
proposed prevalence index approach. Under this proposed
approach the criterion would be met if after discounting all
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dominant facultative (FAC) plants, the number of dominant
obligate wetland (OBL) and facultative wetland (FACW) species
exceeds the number of dominant facultative upland (FACU) and
obligate upland (UPL) species. (Note: a number of options are
presented describing circumstances under which the prevalence
index procedure would be used.)
Do the proposed revisions address concerns raised by the public?
The 1990 public comment period and public meetings resulted in a substantial and
useful record of concerns and recommendations that were considered in developing the
proposed revisions to the Federal Manual. The 1990 public record focused the
agencies' review on key issues, including: the wetland hydrology criterion; concern that
wetlands determinations were based on less than all three of the basis parameters
(hydrology, vegetation, and soils), and in some cases on only one parameter; concern
that areas are dry at the surface (potentially all year round) are considered wetlands
based on the presence of water as deep as 18 inches below the surface; the definition
of the growing season; the assumption that facultative vegetation can indicate wetland
hydrology, which provided opportunities for misuse. The proposed revisions address
these and other concerns raised by the public.
Do the proposed revisions change the definition of wetlands?
No, the proposed revisions do NOT change the regulatory definition of wetlands used
by EPA and the Corps in implementing the Section 404 program or SCS in
implementing the Swampbuster program. They are intended to be consistent with the
regulatory definitions of wetlands in these programs. However, the agencies are
committed to including parts of the final Federal Manual in the Code of Federal
Regulations to clarify the criteria by which the definition of wetlands is interpreted.
Is the proposed revised Federal Manual a three-parameter approach?
Yes. Independent indicators of all three parameters are required unless the area is a
disturbed wetland or an area is a specifically described exception (i.e., playa lake,
prairie pothole, vernal pool, pocosin, or other special wetlands that fail the hydrophytic
vegetation criterion). Exceptions are widely recognized valuable wetland types that may
fail to meet one or more of the three criteria during all or some part of the year.
Disturbed wetland areas include situations where field indicators of one or more of the
three wetland identification criteria are obliterated or not present due to recent change
such as removal of vegetation.
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How is the growing season defined in the proposed revised Federal Manual?
The growing season in the proposed revised Federal Manual is the interval between
three weeks before the average date of the last killing frost in the spring to three weeks
after the average date of the first killing frost in the fall, with exceptions for wetland
areas experiencing freezing temperatures throughout the year (e.g., montane, tundra
and boreal areas) that nevertheless support hydrophytic vegetation. This growing
season for a particular area can be determined by consulting local weather data.
EFFECTS OF THE REVISIONS TO THE FEDERAL MANUAL
Wfll the revisions make it harder to get a Section 404 permit?
No, the revisions will not affect the Section 404 permit process for those areas
identified as jurisdictional wetlands. When a revised Federal Manual is implemented, it,
like the 1989 Federal Manual, will only identify whether or not an area is a
jurisdictional wetland. It will not change the permit evaluation process.
However, EPA and the Corps continue to respond to concerns raised over the
complexity and time consumed by the permit application process by making other
administrative changes. These include working on joint permitting procedures with
interested states, proposing new nationwide and regional permits for activities in
wetlands that have minimal environmental impacts, developing joint guidance to clarify
existing policies, encouraging coordination between permit applicants and Federal
agencies prior to permit application, and providing more accessible information about
wetlands through the EPA Wetlands Hotline at (800) 832-7828.
In addition, the Administration announced on August 9, 1991, a comprehensive plan for
improving the protection of the nation's wetlands, including measures to improve the
Section 404 regulatory program (see attached Fact Sheet on "Protecting America's
Wetlands"). EPA and the Corps will provide further guidance as we move in this
direction.
What is the effect of the revisions to the scope of jurisdiction?
The extent of potential changes in jurisdiction will be identified during the field testing.
The proposed revisions are intended to reduce the potential for erroneous wetland
determinations - that is identifying an area as a wetland that is not a wetland or
conversely, identifying a wetland as upland.
One of the goals of the proposed revision process is to clarify to the public what areas
are wetlands. Over the past two years much of the controversy over the scope of
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jurisdiction resulted from the widespread misunderstanding that the presence of a
mapped hydric soil alone identified a wetland, without any supporting evidence of
wetland hydrology or hydrophytic vegetation. This is not true. To reinforce this point,
stronger indicators of wetland hydrology are required in the proposed revisions
independent of indicators used to demonstrate the presence of hydric soils or
hydrophytic plant communities.
Proposed revisions have been made to a number of different sections of the Federal
Manual making it difficult to precisely predict the effect of the proposed revisions to
the scope of jurisdiction without field testing by qualified personnel. We expect that
the field testing of the proposed revised Federal Manual that will be conducted during
the public review period will more specifically identify the effects of proposed revisions
and help us to respond to any unanticipated impacts.
Has the proposed revised Federal Manual changed the way wetlands are identified or
delineated in disturbed areas such as cropland?
The revised Federal Manual provides two important clarifications in the procedures for
identifying wetlands in disturbed areas. First, the Federal Manual recognizes that there
are Federal agency policies under the Clean Water Act Section 404 regulatory program
and under the Swampbuster program of the Food Security Act of 1985, as amended,
which should be consulted when interpreting the effect of disturbances such as cropping
on the jurisdictional status of an area (e.g., regulatory guidance on normal
circumstances as it pertains to prior converted croplands). Second, the disturbed areas
section of the Federal Manual states clearly that the mere presence of soils meeting the
hydric soil criterion is not sufficient to determine that wetlands are present When the
hydrology of an area has been significantly altered, soil characteristics resulting from
wetland hydrology cannot by themselves verify wetland hydrology since they persist after
wetland hydrology has been eliminated.
What coordination occurs among EPA Regional staff, Corps District personnel and
permit applicants to facilitate the Section 404 permit review process?
Permit applicants are encouraged to initiate pre-application meetings with regional staff
from the Corps, EPA and other commenting agencies to discuss concerns that these
agencies might have with a proposed activity and to resolve differences prior to an
application being submitted. In so doing, the actual permit review period may be
significantly reduced. In order to facilitate these discussions, numerous Corps Districts
hold regulars-scheduled (e.g^ quarterly, monthly) meetings for applicants and other
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agencies including EPA. This early coordination is especially important for
controversial projects involving significant environmental impacts.
In addition, EPA and Corps staff are encouraged to work together to resolve
differences regarding individual permit applications (e.g., project alternatives, mitigation
requirements, specific permit conditions) early in the review process.
Coordination among agencies on the development of regional and general permits
under the Section 404 regulatory program creates additional opportunities to expedite
the permit process for projects with minor environmental impact. Guidance from EPA
and Corps Headquarters (e.g., Memoranda of Agreement, Corps Regulatory Guidance
Letters) reduces or eliminates confusion and controversy sometimes associated with
implementation of the Section 404 regulatory program that might otherwise lead to
delays during permit review.
Finally, the Administration announced on August 9, 1991, a comprehensive plan for
improving the Section 404 regulatory program, including measures for effective
coordination among the agencies (see attached Fact Sheet on "Protecting America's
Wetlands"). EPA and the Corps will provide further guidance as we move in this
direction.
What administrative steps other than the Federal Manual are EPA and the Corps
taking to respond to concerns being raised about the Section 404 program?
The Administration announced on August 9, 1991, a comprehensive plan for improving
the protection of the nation's wetlands, including measures to improve the Section 404
regulatory program (see attached Fact Sheet on "Protecting America's Wetlands").
EPA and the Corps will provide further guidance as we move in this direction.
In addition, in response to specific regional and State concerns about timeliness and
complexity of the Section 404 regulatory program, EPA and the Corps have employed a
variety of administrative tools to respond to specific concerns without reducing our
ability to protect wetlands.
Joint Policy Guidance - EPA and Corps Headquarters have issued policy guidance (e.g.,
Memoranda of Agreement, Corps Regulatory Guidance Letters) intended to reduce or
eliminate confusion and controversy sometimes associated with implementation of the
Section 404 regulatory program. Such guidance has helped reduce delays during permit
review and clarified which activities or areas are subject to the Section 404 program.
For example, in response to concerns raised regarding activities in areas subject to
agriculture, the Corps issued Regulatory Guidance Letter 90-7 which clarified that prior
converted cropland (estimated up to 60 million acres) are NOT subject to Section 404
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Section 404 jurisdiction. This made the Section 404 program more consistent with the
Swampbuster provisions of the Farm Bill, thereby increasing consistency between
Federal wetlands programs.
General Permits - General permits may be issued on a state, regional or nationwide
basis. The general permits are designed to expedite the permitting process as long as
authorized activities do not result in more than minimal environmental harm. At this
time, there are 26 nationwide permits in effect, and the Corps is currently proposing
additional nationwide permits. In addition, EPA and the Corps have been working with
the States of Maryland, Georgia and Mississippi to develop State and regional program
general permits.
Joint Federal/State Processing - EPA and the Corps have also developed Memoranda
of Agreement with States to set up systems to increase consistency in joint
Federal/State permit processing. For example, EPA Region 9 and Corps South Pacific
Division have developed a Memorandum of Agreement with the California Department
of Transportation to provide clear guidance on mitigation requirements.
Earlv Coordination - EPA and Corps staff work together to resolve differences
regarding individual permit applications (e.g., project alternatives, mitigation
requirements, specific permit conditions) early in the review process. Permit applicants
are encouraged to initiate pre-application meetings with regional staff from the Corps,
EPA and other commenting agencies to discuss concerns that these agencies might have
with a proposed activity and to resolve differences prior to an application being
submitted. In so doing, the actual permit review period may be significantly reduced.
In order to facilitate these discussions, numerous Corps Districts hold regularly-
scheduled (e.g., quarterly, monthly) meetings for applicants and the other agencies
including EPA.
Fostering Partnerships with State and Local Programs - Over the last two years, EPA
has increased its work with States on wetlands protection through the State Wetlands
Protection Grants Program. Thirty-eight States are receiving EPA funding, eleven of
which are developing State Wetlands Conservation Plans. These plans include
developing comprehensive statewide strategies for strengthening and coordinating the
many programs-that affect wetlands in a State, and can lead to additional administrative
reforms in certain geographic areas, more effective communication between government
agencies and the regulated sector and conflict avoidance between wetlands protection
and development proposals.
Additional States and Indian tribes are using grants to develop classification systems;
inventory wetlands; develop restoration, creation and enhancement programs; assess the
effects of site-specific mitigation requirements and design "wetland banks" to account for
wetlands losses and gains.
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EPA and the Corps have assisted local governments siich as Eugene, OR, Bellevue,
WA, Boulder, CO and Union City, CA in preparing local wetlands management plans
as a portion of the city's general plan. EPA and the Corps also continue to assist in
the preparation of state and local government Advance Identification (ADID) plans and
special wetland area management plans.
Classification - EPA has also been investigating whether classification of wetlands into a
few broad groups based on their functional value and consequently, whether developing
an explicit set of corresponding regulatory responses, is an appropriate approach in the
Section 404 regulatory program. In addition, as part of a comprehensive plan to
improve the Section 404 program, the Administration will establish an interagency
technical committee to define a limited number of wetland categories.
Providing Accurate Information - To increase awareness about the requirements of the
Section 404 program and to provide easy, rapid access to accurate information on the
Section 404 program and other federal wetland protection efforts, EPA has established
a "Wetlands Hotline." This toll free service (800-832-7828) provides information on
wetland protection efforts.
In addition, documents such as a brochure distributed to the farm community on
"Agricultural Activities in Wetlands that are Exempt from the Section 404 Permit
Process of the Clean Water Act," have been prepared to help clarify activities which are
not regulated under Section 404.
For additional information regarding these ongoing administrative actions by EPA,
contact J. Glenn Eugster, Wetlands Division, Washington, D.C., at (202) 382-5043.
OBTAINING COPIES OF THE REVISED FEDERAL MANUAL
Copies of the proposed revised Federal Manual can be obtained from the EPA
Wetlands Hotline at (800) 832-7828. Hotline representatives can also provide referrals
for answers to questions regarding the revised Federal Manual.
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THE WHITE HOUSE
Office of tho Prase Secretary
For Ironed!ato Release August 9, 1991
TACT SHEET
PROTECTING AMERICA'S WETIANPS
The President announced today a comprehensive plan for
improving the protection of the nation's wetlands* Wetlands
serve an important role in flood control; they help filter wastes
from water; they provide an important habitat and breeding ground
for fish, birds and animals; and they are an important
recreational resource.
Three quarters of the remaining wetlands-are privately
owned, and the pressure to serve other valid human needs often
comes in conflict with conservation* A coordinated wetlands
policy requires balancing all these interests.
The President believes we must look beyond regulation to
encourage wetlands protection. We must enhance public
understanding of the value of wetlands as well as support non-
regulatory programs that encourage private, state and local
actions to conserve wetlands.
The Administration has a three-part plan to slow and
eventually stop the net loss of wetlands, talcing a significant
step toward the President's goal of no net loss of wetlands:
1. Strengthen wetlands acquisition programs and other
efforts to protect wetlands;
2. Revise the interagency manual defining wetlands to
ensure that it is workable; and
3. Improve and streamline the current regulatory system.
Wetlands Expansion Mft&*ura«
Since taking office, the Bush Administration has
proposed:
The purchase of approximately 450,000 acres, et a cost of
over $200 million, of critical wfttiandfi habitat;
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A 48 percent overall funding increase for wetlands
protection efforts in the FY 1992 budget to 9709
million;
A nearly three-fold increase, from 816 million in FY 1989 to
$45 million In FY 1992, for wetlands R&D programe?
The establishment, under the provisions of the 1990 Farm
Bill, of e 600,000 acre wetlands reserve.
To ensure further progress towards the no net loss goal, the
Administration today proposed several new initiatives to enhance
wetlands protection on Federal and private lands. These include:
Fullv funding the Wetlands Reserve Program in the 1990
Farm Bill. The 1990 Farm Bill authorized the purchase
of up to 1 million acres of wetlands. The Admin-
istration will work for this amount in FY 1993 and
future budgets.
Initiating an Administration-wide wetlands restoration
and creation program on Federal lajftds. Many agencies,
including interior, EPA, Defense, commerce, and Energy,
have the potential to engage in restoration and
creation programs. These activities will be
strengthened and coordinated through a standing
interagency task force that will develop an overall
policy for the moat effective use of new and existing
Federal resources.
Continuing to make watlanda a priority in the
allocation of Land and Water Conservation Funds fLWCF).
.The Administration will seek to maintain or increase
funding for this program. Moreover, it will target a
portion of State LWCF funds to wetlands.
and exandin the eating satellite
.
monitoring program to periodically aflaaaa national
wetland trends. Satellite imagery provides up-to-date
information on the status and trends of wetlands, and
can help in conducting periodic change analysis of
high-value wetland areae* The Administration is
accelerating and improving our national inventory of
wetlands, with more geographically targeted reporting,
and monitoring of the ecological health of our
wetlands .
Expanding research on wat lands. Several agencies
Independently conduct research on wetlands. The
Administration is establishing a process to coordinate,
consolidate and establish priorities for wetlands research.
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Focuaino public outreach and education program* on
informing tha regulated community about Fedara.1
watlqnds regulations.
ReviainQ the existing Executive Order pn wetlands to
emphasize watlanda stewardship on Federal lands and the
acquisition of valuable wetlands. The Administration
will revise tha Executive Ordar to include a commitment
to tha no nat loaa goal.
Delineation Manual
On January 10, 1989, the Environmental Protection Agency,
the Army Corps of Engineers, the Fiah and Wildlife Service, and
the Soil Conservation Service issued a Joint Federal Manual for
the Identification and Delineation of Wetlands to address
inconsistencies in practice among the agencies. The Manual
established the technical criteria and procedures used to define
s wetland.
In response to public comments and .field hearings, the
Administration is sending to the Federal Register today a revised
Manual that will incorporate changes to clarify the scope and
application of the Manual. The revised.Manual will be issued as
a proposal and as guidance to the agencies; the public will be
invited to comment on the Manual before it is made final.
streamlining Wetlands Regulations and Adding flexibility
Under section 404 of the Clean Water Act a landowner must
receive a permit from the Corps of Engineers before adding
dredged or fill material to a wetland. The Administration will
take the following actions to improve the workability of the 404
regulatory program.
A. Streamline the Permitting Process
To streamline the regulatory process, the Administration proposes
a number of reforms to ensure more timely decisions and effective
coordination among agencies. These include requirements to:
Issue a regulatory guidance letter providing that
meetings and other interactions between the public,
applicant and Federal government will be coordinated
through a single agency, the Army Corps of Engineers.
The Corps would serve as the project manager, and will
be responsible for all consultations with other
agencies on the permit applications and for determining
the final permit condition;
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Encourage attendance by all interested agencies at the
pre-application meetings with the permittee and early
consultation on the types and location of mitigation
that will be required if wetland losses occur;
Initiate a wetlands delineation training program for
private consultants and better train agenoy field staff
on wetlands functions, values and delineation, using
cross-agency training programs to the extent
appropriate;
Deem permits approved within six months if an agency
does not extend the deadline for good cause as
determined by the Corps of Engineers;
Require consulting agencies to provide site specific
information when commenting on individual permits;
* Replace consulting .agency .appeals of individual permits
with appeals based on resources or issues of national
significance; and
Expand the use of general permits.
B. Wetlands Categorisation
The Administration will establish an interagency technical
committee to define a limited number of major wetland categories
based on function, value, and the relative scarcity or abundance
of different wetlands. The technical committee will complete its
work within 18 months and will consult with outside experts in
defining the categories.
C. Mitigation Banking
The technical committee will also refine the details of a market-
oriented mitigation banking system based on the categories it
defines. The mitigation banking system will be designed to
provide adequate incentives for the private restoration or
creation of wetlands that can be used to mitigate the effects of
developed wetlands. The mitigation banking system will:
* Allow permit applicants to satisfy compensatory
mitigation requirements through the use of "mitigation
credits;"
Presume satisfaction of permit conditions if the
mitigation credits are from the same or from a higher
wetland category; and
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Replace the preference for on-site mitigation for all
wetlands except those in the highest wetland category
with a preference for mitigation within States or
within major hydrological units which may oross State
line*.
D. Perait Conditions for Wetlands
The Administration proposes to maintain the process known aa
saquenoing for the high-value wetland category. Permit
applicants involving wetlands in the remaining categories will be
required to offset wetland losses through compensatory
mitigation. States with less than a 1 percent historic rate of
wetlands development will be able to satisfy permit requirements
through minimization. The Administration will also establish
general permits for low-value wetlands.
B. increasing State Role
To increase the.role of States in the wetlands permitting
process; the Administration will issue guidance to encourage
greater use of Regional and State Ganeral Permit Programs.
States which assume delegation of the 404 program will be given
flexibility, to the extent allowed by current law, to tailor the
wetland categories based on State resources. State programs
would be approved as long as the program achieves on balance the
same environmental benefits as the Federal program.
The Administration also supports legislation to allow
permitting of wetlands near navigable waters by States that
assume responsibility for the permit program.
r. Modifying the Coverage of the Program
The Administration supports legislation to expand the scope of
the 404 program to include other activities which may destroy
wetlands besides the addition of fill material. The
Administration will also take steps to exempt man-made wetlands
which are not used for purposes of mitigation and whose creation
waa not subsidized by the Federal government. The Administration
will also clarify that normal farming, ranching and silvicultural
activities generally are exempt from the 404 program, and that
lands exempted from the Swampbuster program are similarly not
covered..
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